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WUESTEWALD v. FOSS MARITIME COMPANY

May 11, 2004.

PAUL WUESTEWALD, Plaintiff(s),
v.
FOSS MARITIME COMPANY, SHORE TERMINALS LLC, Defendant(s).



The opinion of the court was delivered by: BERNARD ZIMMERMAN, Magistrate Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff seeks damages under general maritime law and the Jones Act, 46 U.S.C. § 688, from defendants Foss Maritime Company ("Foss") and Shore Terminals LLC ("Shore") for injuries plaintiff sustained after he fell from a ladder while attempting to access the SAN PEDRO (the "vessel" or "barge"), a barge owned and operated by Foss, from Shore's dock. Having considered and weighed all the evidence and having assessed the credibility of the witnesses, I now make these findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a): I. FINDINGS OF FACT

Plaintiff Paul Wuestewald, sixty years old, has been working in the marine industry for over thirty years, and as a tankerman for over 20 years. In 1996, he was employed by Foss as a certified tankerman. As part of his responsibilities, plaintiff loaded and unloaded bunker fuel at various terminals throughout the San Francisco Bay.

  On October 16, 2001 Foss owned and operated the SAN PEDRO, a 186 foot-long barge inspected by the Coast Guard pursuant to 46 U.S.C. § 3301. See Joint Ex. 14. The SAN PEDRO is a "bunker barge" employed to carry cargoes of bunker oil used as fuel for sea-going ships. Around the periphery of the barge's steel deck is a five inch high steel ridge called the "coaming" that is located twenty-four inches from the edge of the vessel. Around the edge of the barge is a hemispherical "slip rail" which protrudes about 6 inches from the vessel.

  On October 16, 2001, defendant Shore owned and operated a dock at a fuel oil loading terminal in Richmond, California (the "dock").

  On October 16, 2001, plaintiff was working on the SAN PEDRO loading bunker fuel at Shore's terminal in Richmond, California. He was its only crew member. By approximately 5:40 p.m., the barge was fully loaded. Plaintiff returned to the dock to (1) check the draft lines, which measure how low the barge rests in the water,*fn1 (2) complete paperwork with Shore's personnel, and (3) return a radio earlier given by Shore to plaintiff during the loading or unloading process.

  Shore does not ordinarily provide a gangway or a convenient ladder to access its dock. It was the custom and practice of Foss tankermen to use a portable ladder to access the dock and Foss barges were equipped with ladders for that purpose. It was also their custom and practice not to tie off the ladder at Shore's terminal, principally because of the risks associated with having a ladder fixed in place on a barge that could move up or down. Captain Russell, who supervises the tankermen, admitted that there was nothing specific on the dock to which to tie a ladder. Three tankermen testified that they were unaware that a gangway was available upon request. It was undisputed that a gangway could be rigged to the SAN PEDRO.

  The tide that evening was extremely low. After loading, the deck of the barge rested nine to twelve feet below the dock surface.*fn2 Consistent with his customary practice of accessing the dock, plaintiff braced the bottom of an aluminum ladder inside the side of the coaming facing the dock and leaned the ladder against the dock.*fn3 When plaintiff attempted to climb the ladder, it started to fall backwards because the angle was too acute. Plaintiff then moved the base of the ladder towards the center of the San Pedro and outside the coaming. I find that there was no suitable place against which to brace the ladder or to tie off the ladder at either end. Plaintiff climbed the ladder to the dock without difficulty and completed his tasks. Before descending, plaintiff tested the ladder with his left foot. The ladder felt secure. When he placed his right foot on the rung the ladder slipped from the bottom, causing him to fall approximately nine to twelve feet to the deck of the San Pedro. No evidence was presented on what caused the ladder to slip.

  The edge of the dock had two 12" by 12" wooden "stringers" separated from a cement curb on the dock by a twenty-four inch gap. There were no cleats or hooks affixed to the stringers to which a ladder could be tied or secured. A permanent steel ladder was affixed to the side of the dock approximately eighteen to twenty-four inches from and perpendicular to the side of the barge. To use the ladder, plaintiff would have had to step over both mooring lines and eighteen to twenty-four inch rubber fenders surrounding the barge and swing out over the water using one hand to grasp the ladder. It is undisputed that this is an emergency ladder and that the bottom rungs are slippery due to the presence of barnacles and moss.

  Foss calls on several terminals in the San Francisco Bay Area and is aware of the customary use of ladders to access the docks. Foss never conducted systematic visits to these terminals to investigate conditions affecting dock accessability or to verify the feasibility of following its own ladder safety guidelines.*fn4 It did not arrange for Shore to provide a gangway when needed or for Shore personnel to assist Foss personnel in accessing the dock. It did not ask Shore to provide cleats or hooks on the dock to which ladders could be tied. It provided no guidance for safe access by the tankermen other than what is stated in Foss safety manuals. Captain Russell testified that prior to the accident, he conducted regular safety meetings but never specifically addressed how to safely use ladders in dangerous circumstances, on the grounds that its tankermen were experienced.

  Defendants argued they should be absolved from any liability because plaintiff was negligent in failing to (1) ask Shore employees to lower a gangway, (2) secure the ladder at the top to hoses on the dock or to a steel threaded bolt on the back of the stringers, (3) secure the ladder at the bottom to a cleat, (4) ask Shore personnel to hold the ladder or tie it off from the top before ascending or descending, (5) use a bucket to transfer required paperwork rather than delivering it personally, (6) wait for the tug crew to hold the ladder before accessing the dock, and (7) throw a line from the base of the barge up and through the twelve inch gap in the dock space and then grabbing the line with a rod and securing it to the ladder.

  I decline to fault plaintiff for failing to employ many of the suggested alternatives. The majority are not included in Foss's Safety and Loss Manual or in its Tank Barge Operations Manual. Some involve greater risk than plaintiff's use of a ladder. Foss's suggestions were not provided to tankermen at the safety meetings conducted by Captain Russell. They also fail to appear on the Coast Guard "Report of Marine Accident Injury or Death" completed by Captain Russell immediately following the accident. See Joint Ex. No. 16, p. 2.

  Foss defends its policies on the grounds that it is impossible to instruct its tankermen on every imaginable hazard. Safe dock access and ladder safety, however, fall within the range of expected problems encountered when loading or unloading the barge. The effect of low tides on dock accessability, while infrequent, is regular and expected. I do fault plaintiff, when faced with an unusually low tide which prevented him from bracing his ladder against the coaming, for not seeking assistance from Shore personnel, either to provide him with a gangway or to help him with the ladder. While Foss had not arranged for such assistance, Shore personnel testified that they helped when asked. I assign to plaintiff 20% of the fault for this accident.

  The fall caused plaintiff to fracture his right heel, sustain a mild vertebrae compression fracture, and injure his right hip and hand The pain in his hand has largely resolved since the accident, and his hip, back and foot pain are being treated with anti-inflammatory and pain medication, when necessary, at a cost of $90.00 per month. As a result of his injuries, plaintiff has difficulty sitting for extended periods of time and can only walk for two to three blocks due to the pain in his heel. He is unable to grip heavy objects with his hands. Prior to the accident, plaintiff enjoyed fishing, bowling, and playing with his ...


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